Craig Smith and Tom Melsheimer 2017-05-30 03:43:15
OPEN COURTS The role of Rule 76a in our civil justice system. When Rule 76a of the Texas Rules of Civil Procedure was created nearly three decades ago, the idea was to ensure transparency of Texas courts and provide a voice for third parties to advocate against unnecessary sealing of court files. Rule 76a bolstered the presumption that court records should remain open to the public whenever possible. In an era when the civil justice system was under steady attack by opponents of open courts, Rule 76a was a critical shot in the arm for the fundamental concept that our system operates best when transparent and accessible. Rule 76a allows courts to seal files only after a public hearing to address whether any private interest in sealing documents outweighs the public’s interest in access to the information, particularly when the information at issue has the potential to impact public health and safety.1 For the purposes of 76a, court records include “all documents of any nature filed in connection with any matter before any civil court,” with some exceptions for family law matters. It is important to stress that the term “court records” also includes non-filed information revealed in discovery concerning matters that may affect the public’s welfare and interests. The rule requires a party seeking to seal a court record to file a written motion with the court and post detailed notice of the motion. Hearings also must be public and include a mechanism for intervenors to challenge a sealing request. Finally, the court must grant or deny sealing motions with a written opinion, which is appealable. Clearly, the intent of 76a is to make secret court proceedings the rare exception, not the rule. In the more than 26 years since the rule’s inception, there’s been a steady slackening in the way parties—and their counsel—approach and value the concept of open court records, along with dwindling support for the role transparency plays in democracy and capitalism. The public has a strong interest in a civil justice system that applies the rule of law equally and fairly, and our fundamental faith in the system is inextricably tied to preserving transparency. Today, the intent of Rule 76a is routinely circumvented by a reliance on broad protective orders.2 And over the past three decades, Texas courts have seen a steady increase in the use of broad protective orders related to allegedly confidential files. On both sides of the bar, the trend has been to embrace protective orders early in the litigation cycle and broadly protect and keep confidential court records with little thought for the empty third seat at the table— the public’s interest.3 There are different motivations for this trend. From a defense perspective, the first priority is protecting valuable trade secrets, confidential information, and privileged documents. Indeed, there is more for defendants to worry about than ever. Electronic records and digital files have exponentially increased the amount of information produced in discovery.4 This unwieldy volume of material has been a game-changer in litigation. Agreeing to protective orders sealing court documents can be attractive to plaintiffs’ lawyers because such agreements can expedite the production of documents and move a case along faster. Defendants have also been known to pay a settlement premium for sealing court records that might prove embarrassing or reveal patterns of negligence with respect to dangerous products, environmental contamination, and harmful business practices.5 But these practices come with a price. In the absence of sealing, the public would have learned far sooner about predatory priests, the dangers of asbestos, and exploding tires and defective ignition switches to name a few consequences. Recently, numerous lawsuits related to faulty GM ignition switches were settled with strict confidentiality agreements before the public was finally alerted about the dangers nearly nine years after the first lawsuits were settled. When parties in litigation readily agree to a protective order, it is easy for the judge to sign without much review or consideration for the public’s interest in the records or whether a protective order at the outset of litigation will interfere with or supplant a subsequent Rule 76a hearing. Trial judges should not forget that signing a protective order may later conflict with the rule’s goals and would be wise to not enforce agreed or uncontested protective orders without first engaging in a Rule 76a analysis or preserving the ability to do so later.6 From a judicial perspective, litigants and third-party intervenors need guidance as to when and how the public’s interest plays a role in these decisions. An emerging trend in support of transparency is the use of a standardized motion for a protective order in which a party seeking to seal documents must prove how and why specific files should be closed.7 Such orders often include provisions giving the court authority to sign a protective order only after a full review of any potential adverse effects that sealing might have on the general public. This article’s co-author—Judge Craig Smith of the 192nd District Court in Dallas County—has been using a simple four-page standardized motion for protective orders that includes a specific provision addressing public health and safety concerns within protective order requests. The order states in part: “Nothing in this order is intended to prevent any party from raising with the court any concern that the non-disclosure of certain confidential material may have an adverse effect upon the general public health or safety, or the administration or operation of government or public office.” Smith’s standardized order does not seal court records; it is only intended to facilitate the prompt production of discovery materials. Ultimately, in the 192nd District Court, any motion to seal must adhere to a subsequent Rule 76a hearing, and determination regarding protection and sealing of documents is ruled upon only after any applicable notice and hearing provisions. This is one judge’s way of ensuring transparency and accessibility. NOTES 1) See The Honorable Craig Smith, Grant Schmidt, and Austin Smith, Finding a Balance Between Securing Confidentiality and Preserving Court Transparency: A Re-Visit of Rule 76A and Its Application to Unfiled Discovery, 69 SMU L. Rev. 312 (2016). 2) Id., 336. 3) See Dustin B. Benham, Dirty Secrets: The First Amendment in Protective-Order Litigation, 35 Cardozo L. Rev. 1781, 1827 (2014). 4) See The Honorable Craig Smith, Grant Schmidt, and Austin Smith, Finding a Balance Between Securing Confidentiality and Preserving Court Transparency: A Re-Visit of Rule 76A and Its Application to Unfiled Discovery, 69 SMU L. Rev. 317 (2016). 5) See Dustin B. Benham, Dirty Secrets: The First Amendment in Protective-Order Litigation, 35 Cardozo L. Rev. 1781, 1827 (2014). 6) See The Honorable Craig Smith, Grant Schmidt, and Austin Smith, Finding a Balance Between Securing Confidentiality and Preserving Court Transparency: A Re-Visit of Rule 76A and Its Application to Unfiled Discovery, 69 SMU L. Rev. 333 (2016). 7) Id., 342. HON. CRAIG SMITH presides over the 192nd Judicial District Court in Dallas County. He can be reached at firstname.lastname@example.org. TOM MELSHEIMER is a managing partner in Winston & Strawn’s Dallas office. He can be reached at email@example.com.
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